POT PATIENTS' LAWYER WANTS DA OFF THE CASE

L.B.: Attorney Urges Prosecutors With 'Ax To Grind' To Recuse Selves.

LONG BEACH An attorney representing medical-marijuana patients throughout
California says Long Beach prosecutors have an "ax to grind' against such
patients and has asked that they recuse themselves from his latest Long
Beach case.

San Francisco attorney J. David Nick claims the Long Beach branch of the Los
Angeles district attorney's office has "initiated felony prosecutions
against every individual who has raised a medical marijuana defense' a
particularly aggressive and unfair stance, he says.

"They are involved in a moral war where they take personal issue against
marijuana use for medicinal reasons,' Nick says. "They are not
upholding...all the laws of the state of California.'

Nick represents Nathan Smiley, a 64-year-old Air Force veteran who is being
retried for cultivation of 19 marijuana plants after his first Long Beach
Superior Court jury deadlocked. Nick claims Smiley, who suffers from chronic
pain, is a perfect example of a legitimate patient growing pot for his own
use.

In a motion filed this month, Nick argued the Long Beach branch must be
recused "because they have a particular ax to grind against lawful medical
marijuana users, which makes it reasonably probable that...Smiley cannot get
a fair trial.'

Allen Fields, who runs the Long Beach office and decides which cases get
filed, says that's far from the truth. He says he reviews cases on a
case-by-case basis and has always followed the law as written.

"I don't grind axes,' Fields says. "If this person thinks this is the most
important case to pass across my desk, they better come in and take a look
around. This hardly breaks the radar screen.'

Nick says the numbers tell a different story.

Since Fields took his post two years ago, prosecutors here have filed felony
charges against four disabled people who allegedly had doctors' notes
prescribing them marijuana to combat the effects of their illnesses.

Two of the cases were dismissed. One ended in conviction, which is under
appeal. And the Smiley case the fourth and final case is set to be retried
next year.

It's unclear whether Long Beach files such cases more aggressively than
other jurisdictions in Los Angeles County. Curt Livesay, a chief deputy to
District Attorney Steve Cooley, says he plans to look into the complaint in
response to Nick's recusal motion.

The Compassionate Use Act of 1996 legalized marijuana for patients with
doctors' notes and for primary caregivers of those with doctors' notes. The
California Supreme Court upheld the law and clarified some of its finer
points in a decision handed down last summer.

But federal laws still ban marijuana use unconditionally, making it a sticky
issue for law enforcement.

"At the state level, it's permitted,' Noel Hacegaba, a spokesman for the
Long Beach city prosecutor's office, points out. "At the federal level, it's
not.'

The state attorney general's office has left implementation of the law
largely in the hands of the local officials, but Cooley's office has yet to
formulate a policy on handling such cases.

Livesay says Cooley has formed several working groups to look at the issue,
and some standards have been proposed.

But, he says, "none of them has been adopted as a policy,' despite Cooley's
contention last year that one would be formulated.

Livesay added that a policy may never be penned but rather be issued as a
"special directive' reminding prosecutors that medical marijuana filings
must be made on a case-by-case basis.

Fields says that's exactly what he does already. Because the Compassionate
Use Act is a defense only for possession and cultivation charges, defendants
cannot invoke it as a defense for sale of marijuana. Long Beach Superior
Court Judge Richard Romero is scheduled to hear the recusal motion in the
Smiley case Jan. 21.